Fifty years after Gaultintroduced due process into our juvenilecourts progress has been made, but Gaulthas not proved to be the Gideon of juvenilejustice. 1 Youth do not have the guiding handof counsel at every stage of the proceedings.The National Juvenile Defender Center(NJDC) reports that because of excessivewaiver “countless children accused of crimeare prosecuted and convicted without everseeing a lawyer” 2 and scholars have raisedconcerns about a culture “that frowns uponzealous advocacy.” 3 In concluding that chil-dren are constitutionally different fromadults, 4 the Supreme Court has provided aroad map to return to Gault’s message offairness and proportionality.

We now know that brain developmentcontinues into the mid-20s, which createsexciting possibilities for raising the age of ju-risdiction. However, in spite of declining ju-venile arrest rates, we have witnessed a dis-turbingly retributive narrative that threatensto return us to the pre-Gault era. This pro-cess has been characterized by dramatic in-creases in school referrals to juvenile justice,These practices have adversely affectedour most vulnerable youth, exacerbatedracial and ethnic disparities, and criminal-ized adolescence. 5 Employing a develop-mentally appropriate lens to engage youthin and out of the courtroom is the best wayto promote positive youth development,protect public safety, and make Gault’sdream more than aspirational.

Overview and History
In June 1964, Francis Gerard Gault was accused of making lewd calls to a neighbor and
was sentenced without fact finding or trial to
the Arizona Industrial Training School for
an indeterminate period of time until age 21.
During the hearing in chambers, the judge
was the inquisitor. The “school” was “in all
but name a penitentiary or jail.” 6 An adult
convicted of that charge would have faced a
fine of $5 to $50 or a jail term of not more
than two months. He also would have been
accorded due process. Justice Fortas noted
that, “So wide a gulf between the State’s
treatment of the adult and the child requires
a bridge sturdier than cliche can provide. …
The rhetoric of the juvenile court movement
has developed without any necessarily close
correspondence to the realities.” 7 The disparity of treatment underlines the dangers of net
widening and what can happen when one
goes down the rabbit hole of good intent.

law’s attic

—In Re Gault, 387 U.S. 1 (1967)

Realizing Gault’sPromise of Due Process

BY HON. JAY D. BLITZMAN

JAY BLITZMAN is the First Justice for the Middlesex
Division of the Massachusetts Juvenile Court. Before
becoming a judge he was a founder of the Roxbury
Youth Advocacy Project and a co-founder of Citizens
for Juvenile Justice. He teaches juvenile law at Northeastern University School of Law and trial advocacy at
Harvard Law’s trial advocacy program.

“The child requires the guiding hand of counsel at every stage of the proceedings against him.”